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DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

SESSION 2017-18

Analysis of Lon L. Fuller article: “The Forms and Limits of

Adjudication”

Submitted to: Submitted By:

Mr Manwendra Kr. Tiwari Ravisha Pushkar

Asst. Professor, Roll No-03

Dr. RMLNLU, Lucknow BA LLB (hons) Sem- V

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Introduction

FULLER made a leading contribution to the understanding of the adversary system and the
process of adjudication. He did not officially publish his paper, "The Forms and Limits of
Adjudication", but distributed it widely and discussed it in his correspondence with prominent
academics.

The subject matter of this essay is adjudication in the very broadest sense. As the term is used
here it includes a father attempting to assume the role of judge in a dispute between his children
over possession of a toy. At the other extreme it embraces the most formal and even awesome
exercises of adjudicative power: a Supreme Court sitting in judgment on the powers of the
government of which it is a part, an international tribunal deciding a dispute between nations.

As the term adjudication is used here its application is not restricted to tribunals functioning as
part of an established government. It includes adjudicative bodies which owe their powers to the
consent of the litigants expressed in an agreement of submission, as in labour relations and in
international law. It also includes tribunals that assume adjudicative powers without the sanction
either of consent or of superior governmental power.

The problems towards which the essay is addressed.

The problems that are the concern of this paper are those suggested by the two terms of the title,
the forms and limits of adjudication.

By speaking of the limits of adjudication the author means to raise such questions as the
following: What kinds of social tasks can properly be assigned to courts and other adjudicative
agencies? What are the lines of division that separate such tasks from those that require an
exercise of executive power or that must be entrusted to planning boards or public corporations?
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What tacit assumptions underlie the conviction that certain problems are inherently unsuited for
adjudicative disposition and should be left to the legislature?

By the forms of adjudication the author refers to the ways in which adjudication may be
organized and conducted. In general the questions posed for consideration are: What are the
permissible variations in the forms of adjudication?

Adjudication as a Form of Social Ordering.

It is customary to think of adjudication as a means of settling disputes or controversies. This is,

of course, its most obvious aspect. The normal occasion for a resort to adjudication is when
parties are at odds with one another, often to such a degree that a breach of social order 1 is
threatened. More fundamentally adjudication should be viewed as a form of social ordering, as a
way in which the relations of men to one another are governed and regulated. If, then,
adjudication is a form of social ordering, to understand it fully we must view it in its relation to
other forms of social ordering which are organization by common aims and organization by
reciprocity.

Fuller describes adjudication as a distinct form of social ordering alongside other forms such
as elections and contract. He characterises it principally by reference to the mode of participation
of affected parties-the adversarial presentation of proofs and reasoned arguments. He contrasts
that participation with the participation in other forms of social ordering, such as voting in an
election and negotiating a contract. Contracts represents reciprocity and elections represent
organisation by common aims.

Adjudication, contract, and elections are three ways of reaching decisions, of settling
disputes, of defining men's relations to one another. The characteristic feature of each of these

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Merriam Webster gives the following definition- the totality of structured human interrelationships in a society or
a part of it.
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forms of social ordering lies in the manner in which the affected party participates in the decision
reached. It is characteristic of these three ways of ordering men's relations that though they are
subject to variation — they present themselves in different “forms”—each contains certain
intrinsic demands that must be met if it is to function properly. We may distinguish roughly
between “optimum conditions,” which would lift a particular form of order to its highest
expression, and “essential conditions,” without which the form of order ceases to function in any
significant sense at all.

Fuller has confined his debate to comparison of elections and adjudication. Elections present
themselves in many form, Voting can be organized in many ways: simple majority vote,
proportional representation, single transferable voting etc. At the same time all of these
expressions of political democracy have in common that they afford the person affected by the
decision which emerges a peculiar form of participation in that decision, namely, some form of
voting. The optimum conditions that would give fullest meaning to this participation include an
intelligent and fully informed electorate, an active interest by the electorate in the issues, candour
in discussing those issues by those participating in public debate — conditions, it is needless to
say, that are scarcely ever realized in practice. On the other hand, there are certain essential
conditions without which the participation of the voter loses its meaning altogether. These would
include that the votes be honestly counted, that the ballot boxes not be “stuffed,” that certain
types of intimidation be absent, etc.

Similar analysis is done of the optimum and essential conditions for the functioning of
adjudication. This whole analysis will derive from one simple proposition, namely, that the
distinguishing characteristic of adjudication lies in the fact that it confers on the affected party a
peculiar form of participation in the decision, that of presenting proofs and reasoned arguments
for a decision in his favour. Whatever heightens the significance of this participation lifts
adjudication toward its optimum expression. Whatever destroys the meaning of that participation
destroys the integrity of adjudication itself. The key difference between Elections and
Adjudication is Rationality, which is absent in the case of elections.
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Forms of Adjudication

Lawyer’s role: The lawyer appearing as an advocate before a tribunal presents, as persuasively
as he can, the facts and the law of the case as seen from the standpoint of his client's interest.
In a very real sense it may be said that the integrity of the adjudicative process itself depends
upon the participation of the advocate. It is only through the advocate's participation that the
hearing may remain in fact what it purports to be in theory: a public trial of the facts and issues.

May the arbiter Act on His Own Motion in Initiating the Case: Fuller is of the view that the
integrity of adjudication is impaired if the arbiter initiates the proceedings on his own. He
explains it through an example. Suppose, for example, the collision of two ships under
circumstances that suggest that one or both masters were at fault. Suppose a board is given
authority to initiate hearings in such a case and to make a determination of fault. Such a board
might conduct its hearings after the pattern of court proceedings. Both masters might be
accorded counsel and a full opportunity for cross-examination. There would be no impairment of
the affected parties' full participation by proofs and reasoned argument; the integrity of
adjudication seems to be preserved.

Certainly it is clear that the integrity of adjudication is impaired if the arbiter not only
initiates the proceedings but also, in advance of the public hearing, forms theories about what
happened and conducts his own factual inquiries. In such a case the arbiter cannot bring to the
public hearing an uncommitted mind; the effectiveness of participation through proofs and
reasoned arguments is accordingly reduced. The belief that it is not normal for the arbiter
himself to initiate the adjudicative process has, then, a twofold basis. First, it is generally
impossible to keep even the bare initiation of proceedings untainted by preconceptions about
what happened and what its consequences should be. In this sense, initiation of the proceedings
by the arbiter impairs the integrity of adjudication by reducing the effectiveness of the litigant's
participation through proofs and arguments. Second, the great bulk of claims submitted to
adjudication are founded directly or indirectly on relationships of reciprocity. In this case, unless
the affected party is deceived or ignorant of his rights, the very foundations of the claim asserted
dictate that the processes of adjudication must be invoked by the claimant.
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Must the Decision be Accompanied by a Statement of the reasons for it? Fuller is of the
view that it is not necessary in every situation but highly suggestive. He says if no reasons are
given the parties will almost inevitably guess at reasons and act accordingly. Here the
effectiveness of adjudication is impaired, not only because the results achieved may not be those
intended by the arbiter, but also because his freedom of decision in future cases may be curtailed
by the growth of practices based on a misinterpretation of decisions previously rendered.

May the Arbiter Rest His Decision on Grounds Not Argued by the Parties? Fuller is of the
view that the Arbiter must rest his decision wholly on the proofs and arguments actually
presented to him by the parties. But in practice however, it is not always possible to realize this
ideal. Even where all of the considerations on which the decision rests were touched on by the
parties' arguments, the emphasis may be very different. An issue dealt with only in passing by
one of the parties, or perhaps by both, may become the headstone of the arbiter's decision. This
may mean not only that, had they foreseen this outcome, the parties would have presented
different arguments, but that they might also have introduced evidence on very different factual
issues.

Must the Decision be Retrospective? In practice both the decisions of courts and the awards
of arbitrators are retrospective, both as to their effect on the litigants' rights and their effect as
precedents for the decisions of other cases. It is not the function of courts to create new aims for
society or to impose on society new basic directives but on the other hand with respect to the
generally shared aims and the authoritative directives of a society, the courts do have an
important function to perform, that of developing (or even “discovering”) case by case what
these aims or directives demand for their realization in particular situations of fact. In the
discharge of this function, at times the result is so obvious that no one thinks of a “retroactive
effect.”
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Limits of Adjudication

This is the most important part of the Fuller’s article. Attention is now directed to the question,
What kind of tasks are inherently unsuited to adjudication? The test here will be that used
throughout. If a given task is assigned to adjudicative treatment, will it be possible to preserve
the meaning of the affected party's participation through proofs and arguments?

To describe disputes which cannot be resolved adequately by adjudication, he introduced the

concept of Polycentricity. He describes the polycentric situation with a metaphor and numerous
examples:
Suppose in a socialist regime it were decided to have all wages and prices set by courts
which would proceed after the usual forms of adjudication. It is obvious that here is a task that
could not successfully be undertaken by the adjudicative method. The point that comes first to
mind is that courts move too slowly to keep up with a rapidly changing economic scene. The
more fundamental point is that the forms of adjudication cannot encompass and take into account
the complex repercussions that may result from any change in prices or wages. A rise in the price
of aluminium may affect in varying degrees the demand for, and therefore the proper price of,
thirty kinds of steel, twenty kinds of plastics, an infinitude of woods, other metals, etc. Each of
these separate effects may have its own complex repercussions in the economy. In such a case it
is simply impossible to afford each affected party a meaningful participation through proofs and
arguments. It is a matter of capital importance to note that it is not merely a question of the huge
number of possibly affected parties, significant as that aspect of the thing may be. A more
fundamental point is that each of the various forms that award might take (say, a three-cent
increase per pound, a four-cent increase, a five-cent increase, etc.) would have a different set of
repercussions and might require in each instance a redefinition of the “parties affected.”

Fuller visualises this kind of situation by thinking of a spider web. A pull on one strand will
distribute tensions after a complicated pattern throughout the web as a whole. Doubling the
original pull will, in all likelihood, not simply double each of the resulting tensions but will
rather create a different complicated pattern of tensions. This would certainly occur, for example,
if the doubled pull caused one or more of the weaker strand to snap. This is a “polycentric”
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situation because it is “many centered” — each crossing of strands is a distinct centre for
distributing tensions.

Now the question is if problems sufficiently polycentric are unsuited to solution by adjudication,
how may they in fact be solved? According to Fuller there are only two suitable methods:
managerial direction and contract (or reciprocity).

The manner in which managerial direction solves polycentric problems is exemplified by the
baseball manager who assigns his players to their positions, decides when to take a pitcher out,
when and whom to pinch-hit, when and how far to shift the infield and outfield for a particular
batter, etc. The relationships potentially affected by these decisions are in formal mathematical
terms of great complexity.

The other method by which polycentric problems are solved is that of contract or a
reciprocal adjustment of each centre of interest with those with which it interacts. Thus, an
economic market can solve the extremely complex problems of allocating resources, “costing”
production, and pricing goods. Whenever the literature of socialism actually deals seriously with
those problems the only solution found is the establishment of something akin to a market among
the various state enterprises. It is interesting that the best solution even for problems of
engineering calculation is often found by deriving an answer from a series of approximations,
first from one centre of stress, and then from another.
On the other hand, polycentric problems can often be solved by parliamentary methods
which include an element of contract in the form of the political “deal.” The parties in interest or,
more realistically, the parties most obviously concerned—are called together at a legislative
hearing or in a conference with legislative leaders and “an accommodation of interests” is
worked out. I suggest that we need a philosophy of the “political deal” that will discern its proper
uses from its abuses. I believe the concept of the polycentric problem could help in drawing the
line.

The final question addressed by Fuller is : When an attempt is made to deal by adjudicative
forms with a problem that is essentially polycentric, what happens?
According to Fuller three things can happen First, the adjudicative solution may fail. Unexpected
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repercussions make the decision unworkable; it is ignored, withdrawn, or modified, sometimes

repeatedly. Second, the purported arbiter ignores judicial proprieties — he “tries out” various
solutions in post hearing conferences, consults parties not represented at the hearings, guesses at
facts not proved and not properly matters for anything like judicial notice. Third, instead of
accommodating his procedures to the nature of the problem he confronts, he may reformulate the
problem so as to make it amenable to solution through adjudicative procedures.
Only the last has been explained by Fuller. Suppose it is agreed that an employer's control
over promotions shall be subject to review through arbitration. Now obviously an arbitrator
cannot decide whether when Jones was made a Machinist Class A there was someone else more
deserving in the plant, or whether, in view of Jones' age, it would have been better to put him in
another job with comparable pay. This is the kind of allocative problem for which adjudication is
utterly unsuited. There are, however, two ways of obtaining a workable control over promotions
through arbitration. One of these is through the posting of jobs; when a job is vacant, interested
parties may apply for promotion into it. At the hearing, only those who have made application
are entitled to be considered, and of course only the posted job is in issue. Here the problem is
simplified in advance to the point where it can be arbitrated, though not without difficulty,
particularly in the form of endless arguments as to whether there was in fact a vacancy that ought
to have been posted, and whether a claimant filed his application on time and in the proper form,
etc. The other way of accommodating the problem to arbitration is for the arbitrator to determine
not who should be promoted but who has been promoted. That is, the contract contains certain
“job descriptions” with the appropriate rate for each; the claimant asserts that he is in fact doing
the work of a Machinist A, though he is still assigned the pay and title of a Machinist B. The
controversy has two parties — the company and the claimant as represented by the union — and
a single factual issue, Is the claimant in fact doing the work of a Machinist A?

In practice the procedure of applying for appointment to posted jobs will normally be prescribed
in the contract itself, so that the terms of the agreement keep the arbitrator's function with respect
to promotions within manageable limits. The other method of making feasible a control of
promotions through arbitration will normally result from the arbitrator's own perception of the
limitations of his role. The contract may simply contain a schedule of job rates and job
classifications and a general clause stating that “discharges, promotions, and layoffs shall be
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subject to the grievance procedure.” If the arbitrator were to construe such a contract to give him
a general supervision over promotions, he would embark himself upon managerial tasks wholly
unsuited to solution by any arbitrative procedure. An instinct toward preserving the integrity of
his role will move him, therefore, to construe the contract in the manner already indicated, so
that he avoids any responsibility with respect to the assignment of duties and merely decides
whether the duties actually assigned make appropriate the classification assigned by the company
to the complaining employee.

Mixed Form of Social Ordering Involving Adjudication

Tripartite Arbitration: In this arrangement a “public” or “impartial” arbitrator sits flanked by

arbitrators appointed by the interested parties. For example . If the weavers are raised, say, more
than three cents an hour, it will be necessary to raise the spinners; the spinners' wages are,
however, locked in a traditional relationship with those of the spinning doffers, etc. If there are
thirty different classifications involved, it is obvious how many different forms the arbitration
award might take; each pattern of the award could produce its own peculiar pattern of
repercussions. If such a problem is presented to a single arbitrator, he will be under strong
temptation to “try out” various forms of award in private conversations with the parties. Irregular
and improper as such conversations may appear when judged by the usual standards of
adjudication, it should be noted that the motive for them may be the arbitrator's desire to preserve
the reality of the parties' participation in the decision — to preserve, in other words, the very core
of adjudication.
The “impartial chairman” is flanked by two fellow arbitrators, one selected by the company, the
other by the union. After the hearings the three consult together, the impartial chairman at some
point proposing to the other members of the board various wage scales.